Goulet v. Zoning Board of Appeals, (AC 29524) (Conn. App. 9/29/2009)

• Decision Date: 29 September 2009
• Docket Number: (AC 29524)
• Citation: Goulet v. Zoning Board of Appeals, (AC 29524) (Conn. App. 9/29/2009), (AC 29524) (Conn. App. Sep 29, 2009)
• Court: Connecticut Court of Appeals
• Parties: ELIZABETH GOULET ET AL. <I>v.</I> ZONING BOARD OF APPEALS OF THE TOWN OF CHESHIRE

Page 1

ELIZABETH GOULET ET AL.

v.ZONING BOARD OF APPEALS OF THE TOWN OF CHESHIRE

(AC 29524)

Appellate Court of Connecticut.

Argued April 22, 2009.

Officially released September 29, 2009.

Appeal from Superior Court, judicial district of New Haven at Meriden, M. Taylor, J.

Michael Broderick III, for the appellants(plaintiffs).

Brian A. Lema, for the appellee(defendant).

DiPentima, Robinson and West, Js.

Opinion

DiPENTIMA, J.

The plaintiffs, Elizabeth Goulet and Mark Goulet, appeal from the judgment of the trial court affirming the decision of the defendant, the zoning board of appeals of the town of Cheshire, affirming the decision of Lisa Murphy, the town zoning enforcement officer,¹ to deny the plaintiffs' application for a zoning permit to build a single-family residence.On appeal, the plaintiffs argue that the court improperly determined that (1) two parcels merged by operation of § 24.8 of the Cheshire zoning regulations and (2) the board did not arbitrarily interpret § 24.8.We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to our discussion.On April 8, 1970, the town of Cheshire(town) adopted zoning regulations.In 1972, Elizabeth Goulet acquired title to property know as lot 19 in Cheshire.At all relevant times, a single-family home has been located on lot 19.Five years later, she obtained title to a contiguous parcel of unimproved land known as lot 18.Lots 18 and 19 are located in an R-20 zoning district.Neither lot 18 nor lot 19 meets the minimum dimensional requirements² of the zoning regulations for an R-20 zone.³Elizabeth Goulet owned both lots from 1977 until the conveyance of lot 19 to a third party on July 12, 2002.

On or about July 14, 2005, the plaintiffs filed an application for a building permit to construct a single-family residence on lot 18.By letter dated August 24, 2005, Murphy denied the application for lack of zoning certification.The plaintiffs filed an appeal to the board, which held a hearing.On December 5, 2005, following a 3-2 vote in favor of the plaintiffs, the appeal was denied because it failed to meet the statutory requirement of four concurring votes necessary to sustain the appeal.⁴

On December 27, 2005, the plaintiffs filed an appeal to the Superior Court from the board's decision.The court issued a memorandum of decision denying the appeal on December 19, 2006.Specifically, the court concluded that the lots 18 and 19 were in common ownership during the time of certain amendments to the town's zoning regulations and, therefore, merged by operation of § 24.8 of the Cheshire zoning regulations.It then determined that the denial of a building permit for lot 18 was not arbitrary, unreasonable or contrary to law.Consequently, it affirmed the decision of the board.This appeal followed.

I

The plaintiffs first claim the court improperly determined that the two parcels, lots 18 and 19, merged by operation of § 24.8 of the town's zoning regulations.Specifically, they argue that "the plain language of [§] 24.8 requires an interpretation that the lot merger provision is applicable to ownership at the time of the passage of [§] 24.8 or to ownership at the time of an amendment affecting the nonconformity of the lots as to area or width."The plaintiffs further contend that the court's interpretation is contrary to common sense and the plain meaning of the regulation and results in an absurd result.We are not persuaded.

As a preliminary matter, we set forth the relevant legal principles and standard of review that guide our resolution of this appeal.Our Supreme Court has stated that "[u]nder our well established standard of review, [w]e have recognized that [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts. . . .Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.. . .We have determined, therefore, that . . . deference . . . to an agency's interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency's timetested interpretation . . . ."(Internal quotation marks omitted.)Heim v. Zoning Board of Appeals,289 Conn. 709, 714-15, 960 A.2d 1018(2008);Borrelli v. Zoning Board of Appeals,106 Conn. App. 266, 270, 941 A.2d 966(2008);Munroe v. Zoning Board of Appeals,75 Conn. App. 796, 803, 818 A.2d 72(2003)("[i]t is our job, as an appellate court, to construe the relevant zoning regulation because . . . the outcome . . . eventually will depend on a legal interpretation of the regulation by an appellate court").

Section 24.8 of the town's zoning regulations has not been subjected previously to judicial scrutiny.Moreover, the board did not indicate that it had applied a time tested interpretation of this regulation.Accordingly, we do not defer to the board's construction but exercise plenary review in accordance with our well established rules of statutory construction.SeePasquariello v. Stop & Shop Cos.,281 Conn. 656, 663, 916 A.2d 803(2007).

"[Z]oning regulations are local legislative enactments. . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . .When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . .In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . .In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . .Furthermore, General Statutes § 1-1 (a) provides: In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . ."(Citations omitted; internal quotation marks omitted.)Moon v. Zoning Board of Appeals,291 Conn. 16, 20-21, 966 A.2d 722(2009);Driska v. Pierce,110 Conn. App. 727, 731-32, 955 A.2d 1235(2008).

We begin with the text of the regulation at issue.Section 24.8 of the town's zoning regulations provides in relevant part: "If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of these regulations, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided lot for the purposes of these Regulations . . . ."(Emphasis added.)The interpretation of the emphasized language is at issue in the present case.

It is undisputed that the plaintiffs did not own the two contiguous lots at the time of passage of the town's zoning regulations.The board and the court determined that the phrase "these regulations" means that amendments to regulations in addition to § 24-8 trigger the merger provision.The plaintiffs argue that such an interpretation yields an unreasonable and irrational result.We disagree with the plaintiffs.

Before addressing the specific claim before us, it is helpful to set forth background information on the issue of merger."Contiguous land owned by the same person does not necessarily constitute a single lot."Bell v. Zoning Board of Appeals,27 Conn. App. 41, 46, 604 A.2d 379(1992);see alsoCarbone v. Vigliotti,222 Conn. 216, 227, 610 A.2d 565(1992).Merger may occur if the owner of contiguous lots intends to form one tract;Iannucci v. Zoning Board of Appeals,25 Conn. App. 85, 89, 592 A.2d 970(1991);⁵ or by operation of law.Marino v. Zoning Board of Appeals,22 Conn. App. 606, 607 n.1, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58(1990);see alsoR. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice(3d Ed. 2007) § 53:6, p. 246."The one occasion this court has found where merger may occur by operation of law is that found in some zoning regulations that may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner.SeeNeumann v. Zoning Board of Appeals,14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103(1988);Torsiello v. Zoning Board of Appeals,[3 Conn. App. 47, 48 n.2, 484 A.2d 483(1984)];but seeSchultz v. Zoning Board of Appeals,[144 Conn. 332, 338, 130 A.2d 789(1957)]."Bell v. Zoning Board of Appeals,supra, 46-47.Whether a zoning regulation requires two commonly owned and adjacent lots to be merged is ascertained by examining the regulation itself.Id., 47.

The record reveals two instances in which the town amended the regulations during a time period when Elizabeth Goulet owned lots 18 and 19.⁶First, in July, 1979, the town amended the zoning map, which caused lots 18 and 19 to be rezoned from an industrial zone (I-2) to a residential zone (R-20).⁷The town's zoning regulations expressly state that the zoning maps "and any amendments thereto are hereby made a part of these [r]egulations."Cheshire ZoningRegs., § 22.1.⁸David Velber, a member of the board who voted against the plaintiffs' application, stated that the rezoning from I-2 to R-20 triggered the merger provision.The second instance occurred in 1997, when the town amended § 24 of the regulations.

We conclude that either of these...